Is there a way for states to bring a criminal prosecution against Trump, if the Republicans won't?

[Sanity Claws]

I have been pondering this in the back of my mind.

I've seen a lot of discussion here at DU regarding the definition of "treason." There is also discussion of the Logan Act. What about espionage? Weren't Trump et al in effect helping the Russians to secrets and helping the Russians infiltrate the government? Even Flynn's discussion regarding future actions that the next administration will take could be considered a secret and thus possibly espionage.
Is it possible to fit Trump's action into "espionage?" If so, who could bring suit.

[MineralMan]

1. No. There isn't.

Read the Constitution. The only way to remove a President for crimes is through the impeachment process. No state has the authority to bring criminal charges against a sitting President.

Please read the Constitution. Thanks.

[Pachamama]

3. Could a President commit a crime and have immunity from any charges of a crime?

I understand from the constitution about the removal of the Presidents "title, but a President is still a citizen subject to laws, aren't they? And if the President committed a crime, wouldn't the state where the crime took place have authority to charge him? So if he killed somebody or raped somebody, couldn't he be charged and arrested like any private citizen and face trial and go to jail?



Or do they really get Absolute Power when they become Preident?

[MineralMan]

8. While the President is in office, he cannot be charged and tried for a crime

by a state. Sorry.

You'll have to go to Congress if you want to remove a President from office.

[Pachamama]

17. Maybe this man, Frank J. Larkin will get the honors in the future...

https://www.senate.gov/reference/common/person/larkin_frank_j.htm

[bettyellen]

5. Even if the crimes were committed before his inauguration?

[MineralMan]

9. Not during his term of office.

He could be charged and tried after that, but not during his term. Congress, however, can impeach and remove. That is how it works.

[PoliticAverse]

6. There is nothing in the Constitution saying that the President can't be charged with a crime...

however courts have found that he is immune from criminal prosecution while holding office.

[MineralMan]

11. Yes, exactly.

However, Congress can act during his term.

[yodermon]

12. You just conflated "removing a President" with "bringing criminal charges against a sitting

President".

Those are 2 different things.

The United States Constitution provides only for impeachment and is silent on the issue of whether federal officials can be criminally prosecuted while holding office.

http://www.forbes.com/sites/insider/2016/11/09/can-a-president-trump-be-prosecuted-based-upon-allegations-of-past-misconduct/

I think he could stand trial and be convicted even, but no entity could force the sentence to be carried out... except Congress through impeachment of course.

This would be the very definition of a Constitutional crisis, however, I grant you that.

[exboyfil]

20. Here is a symposium that discusses where it might be possible

Relevant summary:

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2573&context=facpub

On the other extreme is the view of Professor Eric Freedman: sitting Presidents are not immune from criminal prosecution.
Analyzing the constitutional text, the Framers' debates, historical precedent with respect to other federal officials, as well as policy arguments, Professor Freedman finds no support for such immunity; moreover, he sees no need to infer it.

[msanthrope]

39. I think there's a couple of different issues in your answer.....

I don't see anything that prevents a state from pursuing criminal charges. There's nothing that prevents a grand jury from indictment. Think Nixon. Think also, that's precisely what Ken Starr tried to get the DC grand jury to do with President Clinton and they refused a true bill.

Removal from the office itself, however, would have to be by impeachment or the invocation of the 25th.
.
That's my opinion.

[Pachamama]

2. That is an excellent question - perhaps even the District of Columbia or NY or Florida where he is a

"Resident" or where crimes were committed?

Certainly people like Michael Flynn as retired General could be charged under the Uniform Code of Military Justice....

I started a post and thread on Friday with that question regarding Flynn, before he was forced to "resign" and when Trump claimed to have no idea about the WP article about Flynn.

http://www.democraticunderground.com/10028629945

In any event, I hope many great legal minds are looking at what options exist to charge this criminal cabal....

[Sanity Claws]

4. Thanks for the link

So a court martial could be convened against Flynn. Great. The Republicans can't control that.

That thread discussed the definition of espionage for those subject to the Uniform Code of Military Justice. Do you know the definition of espionage for those not subject to the UCMJ?

[PoliticAverse]

7. "The Republicans can't control that." - Trump as Commander in Chief could stop a court martial. n/t

[Sanity Claws]

10. Can you imagine what would happen if he did?

Civil war?

[PoliticAverse]

14. Would there be "civil war" if he pardoned him? n/t

[Sanity Claws]

15. I don't know

but it sure would look like a cover up. The cover up is what did Tricky Dick in.

[PoliticAverse]

19. Nixon was participating in obstruction of justice and was done in...

in the end by being caught on tape doing so.

There would be political fallout from a pardon but it wouldn't be an illegal act by Trump.

[MineralMan]

13. No. He could pardon him. But, there is no protection for former

White House staffers. However, the President could pardon him.

[Pachamama]

23. I discussed w/ my stepfather this possible option of Trump pardoning Flynn if he is court martialed

...my stepfather is a retired Lt colonel and is infuriated by what Michael Flynn has been accused of doing. He wants to see him court martialed if he did these things. He said that while a President could pardon a military conviction, it falls under other rules and is harder and has to go through other channels and I cannot imagine if Trump did this that there wouldn't be an uproar from both the populace, but also the military.

[MineralMan]

24. Well, that all falls under the umbrella of speculation.

I'm not going to even try to speculate. But, a President could issue a pardon. Whether it makes sense or would cause an uproar is another matter. I'm sure it doesn't make sense and would cause an uproar. However, I think there are more pressing issues to think about right now.

[Pachamama]

29. The umbrella of speculation is what we have all been discussing and what is being released now in

....terms of intelligence information to the public is what is leading to all the discussions we continue to have as individuals who care about our nation and as critical thinkers. You of all people on DU Mineralman should understand and appreciate that. And within that "umbrella" it's important to have discussions on possible outcomes and what the laws are. I believe that what is happening and the more that will be revealed, will clearly show that these discussions are not a waste of time nor our energy....and much will be proving to have been prophetic by many DUers...

[hack89]

34. It would never get to Trump

too many lower level political appointees to squash any such notion before it even got off the ground. Besides - who exactly in the military is going to press charges?

[hack89]

33. Considering political appointees run the military

there will never be a court martial fro Flynn.

[rgbecker]

16. If he is free from Criminal Prosecution, that leaves civil.

How about the DNC filing a suit claiming damages from Trump's assisting Russians in gaining access to Computers and dispersing damaging information? Damages being loss of election by Democrats, remedy being new election.

I know Mineral Man doesn't want to waste time talking about these crazy options, but it is fun and interesting, and what else is DU for?

[unblock]

18. there is precedent for that. a civil case against clinton was allowed to proceed while in office.

[rgbecker]

21. And, incidentally, it eventually led Clinton to lying and being Impeached!

Not to overlook, Trump has already lied but not under oath.

[unblock]

25. albeit by a congress of the other party.

republicans will not impeach one of their own.

if it ever got to the point where they were going to impeach and remove him, they could quietly break the news to donnie and let him leave on his own terms. they would agree to finding a way for him to claim victory as long as it included resigning.

e.g., donnie could allude to a new, possibly undisclosed medical issue and say he's doing the statesmanly thing by stepping down under the circumstances, and besides, he accomplished what he wanted to, yada, yada, yada. oh, and of course, the promise of a complete pardon by ford, er, i mean, pence....

[PoliticAverse]

22. You can't really sue for "losing an election" but they could just sue for $$$ damages...

for compensation over the break in if Trump was somehow shown to be involved with it.

[unblock]

27. there are already many civil cases pending against donnie

we just need to get him to commit perjury in any of them.

doesn't need to be election-related.

of course, as noted above, republicans in congress won't impeach him, period. certainly not for anything as petty as the crap they accused the clintons of, not even the stuff they actually impeached bill for.

[The Velveteen Ocelot]

26. State courts don't have jurisdiction over federal crimes.

So, no.

[Sanity Claws]

30. But state AGs may bring suit in federal court, in certain instances

That just happened over the recent Executive Orders.
Is there a federal statute that a state AG could use to prosecute Trump?

[The Velveteen Ocelot]

32. That was a different situation. The state AGs were representing their clients,

which were the states themselves, and the entire case is civil and not criminal. There is no criminal prosecution of anybody; the question is the validity of Trump's EO. Since the EO was the act of a federal official, the states by their AGs had to go to federal court to argue that the EO harmed their states. Don't confuse prosecutorial power with federal jurisdiction; or civil cases with criminal cases. A state prosecutor (normally a district attorney, not the state AG) can prosecute acts that are criminal under that state's laws, and must do so in that state's courts. If a federal crime has been committed, e.g., espionage, a U.S. attorney would handle the prosecution in a federal court. Some acts are illegal under separate state and federal laws (e.g., some kinds of drug trafficking); in those cases the prosecution would be determined by agreement. A big drug case would probably go to the feds even though a state statute was also violated, as there are also issues of federal supremacy.

But the point, more simply put, is that state prosecutors can't and don't prosecute federal crimes in federal courts, though state AGs can and do represent their states in federal courts in civil matters where the federal government or a federal official is a party.

[Sanity Claws]

36. Thanks for the reminder re: civil as opposed to criminal jurisdiction

[LanternWaste]

28. In '74, the USSC agreed to decide a question raised by the White House

In '74, the USSC agreed to decide a question raised by the White House of whether a sitting President could be criminally prosecuted. The Watergate grand jury had named Nixon as an unindicted co-conspirator, an action his lawyers said was a constitutional ''nullity,'' beyond the grand jury's authority. The issue was fully briefed and argued, but was never decided (Chief Justice Burger said it was not necessary to address that particular question in order to resolve the executive privilege issue).

The lawyer for the prosecution argued the relevant sentence in Article I (the one our own handful of armchair "experts" consistently alleges rules out any prosecution-- you know the little fellas: they interpret any disagreement with their premise as ignorance of the constitution-- an irony of gold standard) was simply the framers' way of insuring that an impeached official could not raise a double-jeopardy objection to a subsequent prosecution. He said the sentence applied to all officials who are subject to impeachment, not just the President, and so should not be interpreted as making impeachment the exclusive avenue for bringing criminal charges against a sitting President.

And bear in mnd, both VP Burr and VP Agnew and were indicted while sitting vice presidents.

[Sanity Claws]

31. Thank you for that informative post

I was too young in 1974 to remember that. I imagine some legal scholars are combing through those old briefs.

I will see if they are available on line.

[TrumpMania]

35. So everyone has to to hope for the Republicans...

[Sanity Claws]

37. Hope that they are more loyal to country than to party.

[Pachamama]

38. Or more loyal to US and Constitution than to Russia....